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Joe Cohn of the Foundation for Individual Rights in Education — a group which I very much respect — passed along this response to my post on whether universities should apply the “preponderance of the evidence” standard in deciding whether to expel or otherwise discipline students accused of sexual assault:

Professor Volokh recently authored a post here on The Volokh Conspiracy parting company with my organization, the nonprofit, nonpartisanFoundation for Individual Rights in Education, with regard to our opposition to the Department of Education’s April 4, 2011, “Dear Colleague” letter(DCL), which requires colleges and universities that accept federal funds to utilize the “preponderance of the evidence” standard of proof when adjudicating sexual misconduct cases on campus. (The DCL is not to be confused with the Department of Education’s May 9, 2013, “blueprint” that requires the adoption of unconstitutional harassment codes, which Professor Volokh also recently discussed in this space. Happily, Professor Volokh and FIRE are in full agreement on this score.)

FIRE has had the distinct honor and pleasure of working with Professor Volokh on a variety of cases and issues over the years. As a result, we know very well how deeply considered his opinions are, how thoroughly he interrogates his own conclusions, and how powerful and precise his arguments are as a result. Suffice to say, having Professor Volokh on your side is a real boon. And on those relatively rare occasions where we disagree, we know that it’s useful and illuminating to identify exactly where our calculations diverge, so as to better understand our own contentions and their implications. Thankfully, Professor Volokh is always willing to hear us out, even when our results differ. To that end, we are very appreciative that he has provided us this opportunity to respond to his piece here at The Volokh Conspiracy.

Professor Volokh writes:

When a university is deciding whether to expel, suspend, or otherwise discipline a student for an alleged sexual assault, how much proof should the university proceeding require? Should the student’s guilt be shown by “clear and convincing evidence”? By a “preponderance of the evidence,” which is what the Department of Education’s Office for Civil Rights has demanded, under its interpretation of Title IX? Beyond a reasonable doubt? I’m inclined to say — contrary to quite a few people whose judgment I generally much respect — that preponderance of the evidence would likely be the right standard, at least for claims of sexual assault and not just offensive words.

Professor Volokh explores the question of whether campus sexual misconduct cases are more akin to criminal proceedings, where the highest burden of proof (“beyond a reasonable doubt”) applies, than to civil cases, which utilize the low “preponderance of the evidence” standard (i.e., “more likely than not”). He writes:

The question, then, is whether we should analogize university disciplinary proceedings to (a) criminal trials, in which case we ought to require proof beyond a reasonable doubt, (b) ordinary civil liability or government employee dismissals, in which case a more-likely-than-not standard would suffice, or (c) punitive damages civil liability, in which case we ought to use clear and convincing evidence. That’s not an easy question, but my inclination is to opt for (b), which is what the Office for Civil Rights says.

FIRE strongly believes that in several significant respects, campus sexual misconduct hearings are more akin to criminal trials than to civil proceedings. After all, campus sexual misconduct hearings adjudicate not only sexual harassment claims, but also felonies like sexual assault and rape. And unlike civil complaints, a campus sexual misconduct charge cannot be resolved through settlement.

But the most important measure by which campus proceedings differ from civil proceedings in actual courts of law is the utter lack of the procedural safeguards. As I wrote in an op-ed for The Chronicle of Higher Education last year:

While it is true that most civil cases in federal court are decided under the preponderance standard, due process requires that this low burden of proof be offset by procedural safeguards—lots of them.

For example, to ensure fairness, reliability, and constitutionality, civil trials are presided over by experienced, impartial, and legally educated judges. At either party’s request, facts are determined by a jury of one’s peers. The parties have the right to representation by counsel, and a mandatory process of “discovery” ensures that all relevant evidence will be made available if the opposing party asks for it.

And speaking of evidence, strict rules apply that exclude hearsay, evidence of prior bad acts or crimes, and other information that is either irrelevant or unreliable. Moreover, all depositions and testimonies are given under oath or affirmation, with witnesses subject to perjury charges if they intentionally lie about material issues. The list goes on and on.

So which of those procedural protections are guaranteed in college disciplinary hearings? None. The procedural safeguards used at most colleges are embarrassingly minimal.

In his recent book Unlearning Liberty: Campus Censorship and the End of American Debate, FIRE President Greg Lukianoff dedicates an entire chapter to the disturbing disregard for due process commonly found on American college campuses and the unfortunate norm in campus sexual assault cases. And Professor Volokh acknowledges that there are “serious objections” to be levied against campus disciplinary hearings, including fundamental due process shortcomings. But rather than recognizing that those problems would be helpfully mitigated by a higher burden of proof, Professor Volokh argues that those shortcomings should be addressed separately.

In an ideal world, perhaps the approach Professor Volokh seems to be proposing would be a just one. As I wrote in a blog entry last year, it is not that the preponderance of the evidence standard “in and of itself is necessarily an unfair standard,” but rather that “the preponderance of the evidence by itself — without appropriate accompanying protections — is unfair to the accused.”

But it is extremely unlikely that Professor Volokh’s prescription for remedying procedural shortcomings will be adopted. If anything, FIRE has witnessed a trend of institutions providing increasingly limited due process protections for the accused. As my piece in the Chronicle explained:

Colleges decide for themselves who will preside over these hearings and serve as fact finders. In some instances it’s a panel of faculty, students, and/or administrators, the last of whom may have a powerful incentive to come to the conclusion that is most convenient for the institution. (In the real court system, we are very careful to avoid any hint of this bias from our judges and juries.) Even worse, some colleges have a single administrator designated to serve as both judge and jury.

Similarly, the parties to these hearings frequently have no right to counsel—even if they are able to pay for representation. Neither party has the benefit of discovery, and the rules of evidence don’t apply. Hearsay and even irrelevant “evidence” are regularly considered. Parties are usually not placed under oath and may not be subject to discipline if they lie.

Unless and until schools decide en masse to change such kangaroo-court type procedures, which is highly unlikely, requiring the preponderance of the evidence standard only diminishes the reliability of campus hearings further. Indeed, for all practical purposes, the standard of evidence is the only procedural “safeguard” an accused student is likely to receive. When what is essentially a coin toss on credibility is all that stands between a student and the end of his or her academic career—an accurate description of the stakes and the odds in college tribunals adjudicating claims of sexual assault by using the preponderance standard—injustice isn’t just a realistic possibility. It becomes predictable. While Professor Volokh’s argument for the preponderance standard may be defensible in a normative sense, it does not adequately account for the reality of campus hearings.

FIRE also disagrees with Professor Volokh’s assessment of the seriousness of the consequences for the accused of a wrongful finding. He writes, “And where what is at stake is expulsion from university—a very serious matter, to be sure, but not materially more so than firing from an important job or loss of most of one’s assets—I think it’s reasonable to run a reasonably substantial risk of false conviction.” But expulsion from college isn’t like losing a job or losing money or property in court. Expulsion from college stops entire careers in their tracks before they have even begun and leaves students with the lasting consequences of being found guilty of one of society’s most heinous crimes.

In our May 5, 2011, letter to the Department of Education’s Office for Civil Rights (OCR), my colleague Will Creeley laid out what is at stake in hearings for students charged with sexual assault. He explained:

In the educational context, the Supreme Court has further held that when “a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” due process requires “precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.” The Court made these observations about due process protections at the elementary and secondary school level, finding at least minimal requirements of due process necessary because disciplinary action “could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment.” Given the increased likelihood of much further-reaching negative consequences for a college student found guilty of sexual harassment or sexual violence in a campus judicial proceeding, greater protections are required, not lesser.

[…]

In cases involving allegations of criminal misconduct such as acts of sexual violence, the preponderance of the evidence standard fails to sufficiently protect the accused’s rights and is thus inadequate and inappropriate. Given the unequivocal value of a college education to an individual’s prospects for personal achievement and intellectual, professional, and social growth, OCR’s insistence that schools reduce procedural protections for those students accused of sexual harassment and sexual violence is deeply troubling. Because of the seriousness of these charges, virtually all institutions will punish those students found guilty with lengthy suspensions, if not immediate expulsion. The interest held by both the accused student and society at large in ensuring a correct and just result is therefore far greater than that implicated by a simple “monetary dispute,” and a higher standard of proof is demanded. It is unconscionable, given the prospect of life-altering punishment, to require only that those accused of such serious violations be found merely “more likely than not” to have committed the offense in question.

In cases involving the felonies of sexual assault and rape, there is simply too much at stake to use the preponderance of the evidence standard. Just ask former University of North Dakota student Caleb Warner, falsely accused of sexual assault and suspended, exactly how high the stakes are. FIRE Co-founder and Chairman Harvey Silverglate explained Caleb’s shocking case in an op-ed for The Wall Street Journal:

On Jan. 27, 2010, Mr. Warner learned he was accused of sexual assault by another student at the University of North Dakota. Mr. Warner insisted that the episode, which occurred the month prior, was entirely consensual. No matter to the university: He was charged with violating the student code and suspended for three years. Three months later, state police lodged criminal charges against his accuser for filing a false police report. A warrant for her arrest remains outstanding.

Three months later, state police lodged criminal charges against his accuser for filing a false police report. A warrant for her arrest remains outstanding.

…

Caleb Warner now goes without a diploma and carries with him the stigma of a sexual predator. Unfortunately, the government’s policy ensures that his will not be a unique case.

It took approximately a year and a half—and FIRE’s intervention—before the University of North Dakota acknowledged its mistake and lifted Warner’s suspension. He had been driving a delivery truck.

Professor Volokh, of course, acknowledges the inherent risk of erroneous findings imposed by the use of the preponderance standard:

The main problem with this [OCR’s] approach, I think, is that it gives malicious complainants a great deal of power to badly harm classmates just by accusing them. A swearing match between two people, with no corroborating physical evidence or testimony from impartial witnesses, will often not lead to a conviction under a beyond-a-reasonable-doubt standard (though sometimes it does, and not just in sex crime cases). But it often would lead to a finding of guilt under a more-likely-than-not standard, especially given most adjudicators’ plausible assumption that the accused has more of a motive to lie in denying guilt than the accuser does in asserting guilt. This means that if even a few people are willing to falsely accuse someone, this could lead to a good deal of harm.

Indeed, this is a serious consideration. How many schools will admit students expelled from college for sexual assault, even with proof that the charges were baseless? My guess, having sat on a few admissions committees, is not many.

[N]one of this affects the criticisms of the Office for Civil Rights’ attempt to pressure universities into instituting speech codes aimed at restricting a broad range of speech that’s labeled “sexual harassment.” I’m speaking here of actual assaults, not just offensive words.

But of course, it’s important to note that OCR has mandated use of the preponderance of the evidence standard not only for sexual assault cases, but for sexual harassment cases, as well. Under its new “blueprint,” OCR has combined our judiciary’s lowest standard of proof with one of the broadest imaginable definitions of sexual harassment (i.e., “any unwelcome conduct of a sexual nature,” including speech, and without reference to any objective standard).

Under this regime, a student or faculty member may be found guilty of harassment after a campus judiciary decides that it is 50.01% likely that the accused had subjectively offended someone by making a sexual or gender-related comment. Combine that with the “he-said, she-said” evaluation central to most preponderance-driven hearings, and you have a recipe for erroneous harassment verdicts for as far as the eye can see—findings that will turn accusations of harassment into a joke on campus and trivialize the experiences of those who suffer from actual, serious harassment.

Setting aside the normative argument for a moment, OCR’s authority to mandate the preponderance standard—or any evidentiary standard for that matter—is questionable at best. As former OCR attorney Hans Bader has persuasively argued in The Examiner:

Giving someone a presumption of innocence isn’t a “violation” of the civil rights laws in the first place … Under the Education Department’s own 1997 guidance, it’s the school, and its action in response to the harassment, that has to be culpable in order to violate the statute, not just the harasser’s own conduct. And it’s not in any way culpable for a school to give someone a presumption of innocence. No one has a “right” to discipline just because harassment happens: they only have a right to a reasonable response by their school in response to their complaint, which may or may not lead to disciplinary action depending on the evidence.

The Supreme Court also emphasized in its 1999 decision in Davis v. Monroe County Board of Education that Title IX doesn’t give complainants a “right” to second-guess a school’s reasonable decisions about discipline, noting that there isn’t any “Title IX right” to “particular remedial demands” or “particular disciplinary action” …

FIRE believes that every accusation of sexual harassment (or any other offense) must be competently evaluated. Of course, no college or university should ever ignore an accusation that would be actionable if true. But justice does not require sacrificing due process rights, and meaningful protections must be provided to the accused. The measure upon which we judge these proceedings should be the fairness, integrity, and reliability of the outcomes. By that measure, the preponderance of the evidence standard — coupled with the current shortcomings of campus procedures—just doesn’t cut it.

As long as campus courts and definitions of offenses are so bereft of reason and common sense, the preponderance standard will only do more harm than good. An unfair, unreliable—and, with respect to the blueprint, unconstitutional—process helps no one.

I thought this was a very thoughtful and sensible critique, and while I think I tentatively adhere to my original views on this, it struck me as much worth posting.